1 Answer from Attorneys

No. The house would pass through his estate. If he has a will, then it would pass as provided in the will. If he does not have a will, then Illinois law provides for one half his estate to his spouse and one half to his children or the descendants of any deceased child.

A spouse does have a right to a modest spouse's award in an estate, as well as a right to renounce a will and claim a spousal share. So, you would not be entirely without protection should this remain unaddressed, but it would be best for your husband to consider the matter.

There are several option that your husband can consider. If you do not have wills, which you should regardless of this question, the home can be addressed in preparing a will. In that event, however, steps will need to be taken should your husband pass to get the property out of his estate. Often, spouses hold title together through a form of ownership that provides for survivorship (either Tenancy by the Entirety (only available to married couples or domestic partners) or Joint Tenancy). A new option is a Transfer on Death Instrument in which someone can retain title, but provide by deed what happens on death.